Archive for March 25th, 2010

The legal sector is, perhaps, more prone to puffery and self aggrandisement than other sectors – and certainly a quick glance at the style of Chambers & Partners ‘puffs’ about members of the Bar makes interesting reading. I selected a number of QCs at random from chambers websites in the almost certain knowledge that they would include these ‘glowing references’ for very few to see – who, after all, hangs out at chambers websites while surfing on the net?

Typical of the genre are the following – I have deleted the names to protect the innocent.

‘Never fails to make an impression’; ‘highly imaginative and engaging advocate’; ‘thoroughness and ability to spot angles in a case that others will miss’; ‘bedazzled by him’; ‘skill at crafting a case such that you get the result you want’ (Chambers & Partners, 2009)

‘unique amongst barristers in the way he presents his case.’ An ‘accomplished, brave and innovative advocate’; ‘has a strong, clear view on things and a deliberate way of moving through his argument which ensures all his points get made to the judiciary’; ‘he speaks a language we understand.’ (Chambers & Partners, 2008)

a “combination of intellectual brilliance and unrivalled experience”, “one of the few at the Bar who can genuinely make a complete difference when you are having your last roll of the dice” (Chambers & Partners, 2009)

‘known to really get his teeth into the big cases.'” (Chambers guide 2008)

All good stuff – and, I suspect, pretty harmless. We all like to have our backs slapped from time to time and why not get another lawyer to write to a directory and do so…after all, one good turn deserves another. I looked at over 200 of these ‘puffs’ (30-40 barristers) – all remarkably similar, almost as if there was a database of ‘puffs’ from which to choose five for each reference!

After 30 years teaching law, observing lawyers and commenting on law, I have come to the conclusion that while law is ‘difficult’ and requires a reasonable intelligence, it does not require a brain the size of a planet to make a reasonably good living or do a competent piece of work. I may well get lynched by the ‘brothers-in-law’ for saying this – but the truth of the matter is that law is a construct of the judiciary and those tasked with inventing new laws – the politician – which may well explain why so many of our new laws are so badly framed, allowing, of course, lawyers further opportunity to ‘dazzle each other with their ‘brilliance’.

The analysis and intelligence required of lawyers is not so demanding as required by practitioners and academics in, say, the field of medical, engineering or even planetary science – or mathematics. There is a finite number of laws; many now conveniently placed on databases by Lexis-Nexis, Westlaw and Lawtel et al, a body of caselaw – much of it also online and that covers the research side. The clever bit is not, of course, telling the client what the law is so they may avoid breaking it or losing a civil action (although, they say, that much law as practised is for exactly that) – but in constructing ‘instruments’ to ‘avoid’ the law (or tax) or to lace it with ‘zones of uncertainty’ , ‘poison pills’, ‘shark repellent’ to deter the other side from testing the matter in court. Even so – this skill is not comparable, say, to that of the inventors of all the modern drugs, developments in medical science, aircraft, iphones, the internet etc etc which allow us to live a 21st century, as opposed to a 13th Century, life.

So where is this all leading?

Habemus Papam! (“We Have a Pope!”) or, to be more accurate, we have a new Supreme Court Judge – finally…after an almost absurd, but very English, period of legal history where anger, vituperation, jealousy, back slapping, duplicity, whispering and indecision baffled some, amused others, and led to the elevation to judicial pinnaclehood of Lord Justice Dyson.

The Times provides the soothing balm before injecting the more spicy stuff…

“His promotion will be welcomed widely. He is both popular and talented, a public lawyer by background with ability and a humane touch. It will be welcomed, too, for marking an end to an unseemly fiasco that exposed the workings of senior judicial appointments in an unedifying light.”

I have no doubt that Sir John Dyson will be a good supreme court justice. There is little point in speculating. Objective analysis of his judgments (Now they are no longer in the House of Lords, I assume they don’t make speeches any more? Presumably Sir John won’t get a peerage?) will reveal all – and, fortunately, there is an excellent website where this objective and useful analysis is being done: UKSC | Blog

The rest of The Times story is devoted, of course, to the rather shoddy way Jonathan Sumption QC was treated by the ‘powers that be’. (Times coverage)

The Times notes, wryly:“As disclosed in Supreme Ambition, Jealousy and Outrage, Jonathan Sumption, QC, the original favourite, withdrew his application after opposition from senior judges. There was furious resistance to the notion that Sumption, who had not sat as a judge full-time, should leapfrog others who had. Yet the Constitutional Reform Act 2005 had expressly provided for this possibility and the advertisement for the post stated that lawyers of 15 years’ experience could apply.”

This raises two issues: first, that Sir John Dyson, however qualified, may not have been the best choice and (b) it dilutes the intention behind the new statutory regime that it was not necessarily going to be the case that Mr Justice Buggins would get his turn and that we would seek the very best from The Bar, the profession generally, or academe. Other Supreme Courts around the world have benefited from a greater pool, a more diverse approach – why not the Supreme Court of the United Kingdom?

The Times states: “Judges and lawyers remain deeply divided over the issue. A top commercial silk said he thought that Sumption had been “appallingly treated”, adding, “his appointment would have been a one-off. What this has done has effectively blocked the possibility of a top silk joining the Supreme Court for a generation so our highest court has been deprived not just of his but of other talent.”

Inevitably, and one can’t blame the ‘top silk’ – given the secretive ‘ways and means’ which seems to still operate in the higher reaches of the ‘law’ – the top silk chose to speak anonymously, off the record on even such an uncontroversial point! To that extent – one is tempted to disregard ‘top silk’s’ views completely because if he hasn’t the balls to go on record, why should we even consider his thoughts and views? I suppose old habits die hard – but there again, I don’t have to worry as I seek no preferment, reward or honour from anyone, so, within the law, I can say what I like without fear of favour (sic)!

At least an old friend of mine, Jonathan Goldberg QC (though I do not agree with his view on this), did have the cojones to come out and say, with typical bluntness…as reported in the Times: ” But many judges privately take the view of Jonathan Goldberg, QC, who dismissed the idea of such appointments as “all very silly” and “typical new Labour spin”, adding: “It is perfectly obvious that the only person possessing the incredibly refined skills required of a top-tier judge will have been an experienced judge already.”

This, of course, has all been very disappointing for the architect of the new Supreme Court regime… Charlie Falconer who, as Lord Chancellor is alleged to have designed the entire edifice with Tony Blair while smoking a cigar, drinking a whisky and scribbling on the back of a fag packet

The Times reports: ” Lord Falconer of Thoroton, the former Lord Chancellor, said: “We were very keen to open up the Supreme Court beyond simply the Court of Appeal judges. If he [Sumption] was the best man for the job, that he did not come from the usual pool should not have been a reason for rejecting him.”

Lord Goldsmith, the former Attorney-General, said: “Jonathan is an excellent advocate and an excellent lawyer. As a matter of principle, other countries have benefited from occasionally taking into their supreme courts some outstanding lawyers who have not come directly from the ranks of the judiciary.” The principle was a positive: to ensure the “widest choice, so as to have the best possible candidate”; it would be wrong to say such a candidate could never be appointed.

There is, of course, at last one precedent for a member of the Bar going straight to the top court – Lord Radcliffe. The Times picked up the point…giving us (lawyers) another opportunity to bask in our own ‘brilliance’ and, in this case, read of ‘Giants’…. ” Even Hedley Marten, head of Radcliffe Chambers, a set created in 2006 and named after Lord Radcliffe, holds no brief for Sumption. Radcliffe, he said, was not only a “giant at the Bar” but had made substantial contributions to English life, in the Ministry of Information and in the partition of India. “He was already seen as national asset to be used at the highest level.” Sumption was “brilliant” but “unlucky”. “I do not think he passes the ‘national asset’ standing of lords McNaughton or Radcliffe.”

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Change? Not bl***y likely… evolution, not revolution, is the ‘ways and means of the ‘Law’ ‘.

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